-There has

that he kept within the law. . . . So here as to the car. been a suggestion in some cases of a more severe rule in the case of very dangerous agencies. . . . Loop v. Litchfield, 42 N. Y. 351; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. Rep. 400. But whether there be any such qualifications or not, the present case is within it. If it had appeared that the use made of the car was contemplated by the defendant, it still would have been a use subject to inspection, and of a car with no secret defect. Exceptions overruled.

468. TARRY v. ASHTON

HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION. 1876
L. R. 1 Q. B. D. 315

[The statement of facts is printed ante, in No. 400.]

A. Collins, and Poulter, shewed cause. It must be admitted that Chappell was not the defendant's servant, as the jury have taken upon themselves to find; but that is quite immaterial. . . . In Pickard ɛ. Smith (10 C. B. N. S. 470) the occupier of premises was held liable for injury caused by the trap of the coal cellar belonging to the premises being negligently left open, not by his own servants, but by the servants of the coal merchant. That is a stronger case than the present. . . . McIntyre, Q. C., and Darling, in support of the rule. The defendant has been guilty of no negligence. [LUSH, J. Negligence is a relative term. The question is, What is the duty of a person who hangs a thing over the highway?] To take reasonable precautions that it is in a safe condition by being kept in a good repair. This the defendant has done, he did all he could by employing a competent person to repair it in August. He is not answerable for the person's neglect.

BLACKBURN, J. I desire to decide nothing beyond what the circumstances of the case require; and on the facts of the case, I am of opinion that the plaintiff is entitled to keep the verdict. . . . If there were a latent defect in the premises, or something done to them without the knowledge of the owner or occupier by a wrongdoer, such as digging out the coals underneath and so leaving a house near the highway in a dangerous condition I doubt, at all events, I do not say, whether or not the occupier would be liable. But if he did not know of the defect, and neglected to put the premises in order, he would be liable. He would be responsible to this extent, that as soon as he knew of the danger he would be bound to put the premises in repair or pull them down. . .

It being his duty to put it in repair, he employs Chappell to do so. We must assume, I think, that Chappell was a proper person to employ; and I may observe that he was clearly not the defendant's servant, as the jury say, but an independent contractor. But it was the defendant's duty to make the lamp reasonably safe; the contractor failed to do that;

and the defendant, having the duty, has trusted the fulfilment of that duty to another who has not done it. Therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences. It was his duty to have the lamp set right; it was not set right.

1 [SUB-TOPIC C.

PROBLEMS:

The rule must be discharged.1

The defendant was owner and lessor of a house; a gutter-pipe for discharging rain-water was defectively constructed, so that ice formed on the sidewalk, and the plaintiff was injured thereby. The house was under the control of a lessee at the time. Is the defendant responsible? (1903, Isham v. Roderick, 89 Minn. 397, 95 N. W. 224.)

The defendants were landlords of a baseball park. The plaintiff received an injury from the grandstand falling. The stand was erected before the landlords took title and was owned by the tenant; the tenancy continued after the change of ownership, and a new lease was made to the same tenant before the original term had expired, and the tenant continued in exclusive possession, and there was no time prior to the accident when the landlords were actually in possession, or could lawfully have taken possession. Were the defendants liable? (1909, Cunningham v. Rogers, 225 Pa. 132, 73 Atl. 1094.)

The plaintiff was injured by the fall of a smokestack erected partly on the defendant's land leased to the adjoining owner and partly on the adjoining owner's land; the defendant used the stack, and was under agreement to keep it in repair. Is the defendant or the tenant responsible? (1900, Boyce v. Snow, Ill., 58 N. E. 403.)

The plaintiff, a reporter, was injured by the fall of plaster from the ceiling of a room used as a city-council chamber. The declaration alleged that the city was "in possession and use" of the room, and negligently suffered it to be inWas this sufficient? (1872, Chicago v. O'Brennan, 65 Ill. 160.)

secure.

A statute provides that all buildings shall have suitable metallic leaders sufficient to carry all water to the street. Defendant's building was equipped with a leader made of zinc, with joints which could slide to allow for contraction or expansion, and it descended from the gutter to a point about five feet from the sidewalk, where it ran horizontally to the line of the street. Water froze in the horizontal part of it, forcing the water to fill up the leader and back up into the gutter, thereby creating an accumulation of ice upon the gutter and along the leader, and plaintiff was injured by a fall of such ice. At the time the premises were leased by a lease requiring the lessee to save the lessor harmless from any claim for damage arising from neglect in not removing snow and ice from the roof of the building or the sidewalks. Was defendant liable for the injuries? (1908, Coman v. Alles, 198 Mass. 99, 83 N. E. 1097.)

The defendant was owner and lessor of oil wells, the oil being stored in tanks after leaving the wells. The lessee managed the wells and the tanks. Oil escaped therefrom, caught fire, and injured the plaintiff's property. Is the defendant responsible? (1903, Langabaugh v. Andersen, 68 Oh. 131, 67 N. E. 286.)

The plaintiff was a guest in a hotel leased and occupied by M and owned by the defendant. On the second floor a door opened sheer out over the sidewalk; but it had a lock, key, and shutter. The tenant failed to keep it properly locked, and the plaintiff went out by it, fell, and was hurt. Is the defendant responsible? (1899, Texas Loan Agency v. Fleming, 92 Tex. 458, 49.S. W. 1039.)

NOTES:

"Injury from defective flooring: liability of landlord to third parties." (C. L. R., VI, 277.)

"Damage suffered after completion of work: liability of contractor." (H. L. R., VIII, 290, 291; X, 191.)]

SUB-TOPIC D.

THIRD PERSON AS INTERMEDIATE VENDEE
(PRIVITY OF CONTRACT)

469. WINTERBOTTOM v. WRIGHT

EXCHEQUER. 1842

10 M. & W. 109

CASE. The declaration stated, that the defendant was a contractor for the supply of mail-coaches, and had in that character contracted for hire and reward with the Postmaster-General, to provide the mail-coach for the purpose of conveying the mail-bags from Hartford, in the county of Chester, to Holyhead: That the defendant, under and by virtue of the said contract, had agreed with the said Postmaster-General that the said mail-coach should, during the said contract, be kept in a fit, proper, safe, and secure state and condition for the said purpose, and took upon himself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach; and it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition for the purpose aforesaid: That Nathaniel Atkinson and other persons, having notice of the said contract, were under contract with the Postmaster-General to convey the said mail-coach from Hartford to Holyhead, and to supply horses and coachmen for that purpose, and also not, on any pretence whatever, to use or employ any other coach or carriage whatever than such as should be so provided, directed, and appointed by the Postmaster-General: That the plaintiff, being a mail-coachman, and thereby obtaining his livelihood, and whilst the said several contracts were in force, having notice thereof, and trusting to and confiding in the contract made be tween the defendant and the Postmaster-General, and believing that the said coach was in a fit, safe, secure, and proper state and condition for the purpose aforesaid, and not knowing and having no means of knowing to the contrary thereof, hired himself to the said Nathaniel Atkinson and his co-contractors as mail-coachmen, to drive and take the conduct of the said mail-coach, which but for the said contract of the defendant he would not have done. The declaration then averred, that the defendant so improperly and negligently conducted himself, and so utterly disregarded his aforesaid contract, and so wholly neg lected and failed to perform his duty in this behalf, that heretofore, to wit, on the 8th of August, 1830, whilst the plaintiff, as such mailcoachman so hired, was driving the said mail-coach from Hartford to Holyhead, the same coach being a mail-coach found and provided by the defendant under his said contract, and the defendant then acting under his said contract, and having the means of knowing and then

well knowing all the aforesaid premises, the said mail-coach being then in a frail, weak, infirm, and dangerous state and condition, to wit, by and through certain latent defects in the state and condition thereof, and unsafe and unfit for the use and purpose aforesaid, and from no other cause, circumstance, matter, or thing whatsoever, gave way and broke down, whereby the plaintiff was thrown from his seat, and, in consequence of injuries then received, had become lamed for life.

To this declaration the defendant pleaded several pleas, to two of which there were demurrers; but as the Court gave no opinion as to their validity, it is not necessary to state them.

Peacock, who appeared in support of the demurrers, having argued against the sufficiency of the pleas,

Byles, for the defendant, objected that the declaration was bad in substance. This is an action brought not against Atkinson and his co-contractors, who were the employers of the plaintiff, but against the person employed by the Postmaster-General, and totally unconnected with them or with the plaintiff. Now it is a general rule, that wherever a wrong arises merely out of the breach of a contract, which is the case on the face of this declaration, whether the form in which the action is conceived be ex contractu or ex delicto, the party who made the contract alone can sue: Tollit v. Sherstone, 5 M. & W. 283. If the rule were otherwise, and privity of contract were not requisite, there would be no limit to such actions. . . .

Peacock, contra. This case is within the principle of the decision in Levy v. Langridge. Here the defendant entered into a contract with a public officer to supply an article which, if imperfectly constructed, was necessarily dangerous, and which, from its nature and the use for which it was destined, was necessarily to be driven by a coachman. That is sufficient to bring the case within the rule established by Levy v. Langridge, 4 M. & W. 337. In that case the contract made by the father of the plaintiff with the defendant was made on behalf of himself and his family generally, and there was nothing to show that the defendant was aware even of the existence of the particular son who was injured. . . LORD ABINGER, C. B. I am clearly of opinion that the defendant is entitled to our judgment. We ought not to permit a doubt to rest upon this subject, for our doing so might be the means of letting in upon us an infinity of actions. This is an action of the first impression, and it has been brought in spite of the precautions which were taken, in the judgment of this Court in the case of Levy v. Langridge, 4 M. & W. 337, to obviate any notion that such an action could be maintained. We ought not to attempt to extend the principle of that decision, which, although it has been cited in support of this action, wholly fails as an authority in its favor; for there the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself, but was really and substantially the party contracting. Here the action is brought simply because the defendant was a contractor with a third person; and

it is contended that thereupon he became liable to everybody who might use the carriage. If there had been any ground for such an action, there certainly would have been some precedent of it; but with the exception of actions against inn-keepers, and some few other persons, no case of a similar nature has occurred in practice. That is a strong circumstance, and is of itself a great authority against its maintenance. It is however contended, that this contract being made on the behalf of the public by the Postmaster-General, no action could be maintained against him, and therefore the plaintiff must have a remedy against the defendant. But that is by no means a necessary consequence, — he may be remediless altogether. There is no privity of contract between these parties; and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would

ensue. .

ALDERSON, B. I am of the same opinion..
GURNEY, B., concurred.

...

ROLFE, B. The breach of the defendant's duty, stated in this declaration, is his omission to keep the carriage in a safe condition; and when we examine the mode in which that duty is alleged to have arisen, we find a statement that the defendant took upon himself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach, and, during all the time aforesaid, it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition. The duty, therefore, is shown to have arisen solely from the contract; and the fallacy consists in the use of that word "duty." If a duty to the Postmaster-General be meant, that is true; but if a duty to the plaintiff be intended (and in that sense the word is evidently used), there was none. This is one of those unfortunate cases in which there certainly has been damnum, but it is damnum absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law. Judgment for the defendant.

470. THOMAS v. WINCHESTER

COURT OF APPEALS OF NEW YORK. 1852

6 N. Y. 397 (2 Selden)

APPEAL from the general term of the Supreme Court, into the Sixth District, where a motion for a new trial, made upon a bill of exceptions,

1